Unpublished Disposition, 894 F.2d 1344 (9th Cir. 1990)

No. 88-5475.

United States Court of Appeals, Ninth Circuit.

Before HUG and CANBY, Circuit Judges, and DAVID A. EZRA,^*  District Judge.

MEMORANDUM^** 

Paul E. Bell appeals his conviction, following a jury trial, for escape from the custody of the attorney general in violation of 18 U.S.C. § 751. He contends that the trial court did not obtain a knowing and intelligent waiver of his sixth amendment right to counsel.

The sixth amendment guarantees a criminal defendant the right to be represented by counsel or to represent him or her self. Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 2527 (1975). The trial court must carefully balance the defendant's right to self-representation and its duty to ensure that defendant's waiver of the right to counsel is made knowingly and intelligently with awareness of the risks. Harding v. Lewis, 834 F.2d 853, 857 (9th Cir. 1987), cert. denied, 109 S. Ct. 182 (1988). Whether a defendant knowingly and intelligently waived the right to counsel is a mixed question of law and fact which this court reviews de novo. Id.

The record reflects that the trial judge explained to Bell the charges against him and the possible penalties he faced. Bell, however, contends that the trial judge did not sufficiently advise him of the perils of self-representation and the disadvantages of proceeding to trial without an attorney. He asserts that the trial judge "lectured him" and did not specifically question him regarding the elements of the crime or his understanding of the rules of evidence and procedure.

The record, however, confirms that the trial judge did advise Bell of the perils of self-representation. The trial judge advised Bell strongly against giving up his right to counsel and urged him to retain the counsel appointed to him. The trial judge also specifically referred to the maximum sentence which could be imposed if Bell were convicted.

In determining whether the waiver is valid, however, the focus of this court's inquiry is not on what the trial judge said, but on what the defendant understood. United States v. Kimmel, 672 F.2d 720, 722 (9th Cir. 1982).

After making the statements discussed above, the trial judge asked Bell if he understood what he had said, if he understood what the consequences could be, and whether he still wanted to represent himself. Bell answered affirmatively to all of the above questions. The trial judge also asked Bell if he was thinking clearly, whether he was on any medication, and whether he had adequate time to think about his decision. All of Bell's responses indicated that he was alert and cognizant of what he was doing.

As indicated previously, the trial judge strongly cautioned Bell with respect to the dangers of self-representation and Bell responded that he understood. The court finds that the trial judge's warnings were adequate and understood by the defendant and therefore his waiver of counsel was knowingly and intelligently made.

Appellant also contends that the trial court's appointment of Ms. Hawkins as appellant's advisory counsel was insufficient to cure the error created by the allegedly defective waiver. Having found that the waiver was knowingly and intelligently given, however, the court does not address this issue.

AFFIRMED.